Citation NR: 9701544
Decision Date: 01/17/97 Archive Date: 02/03/97
DOCKET NO. 94-22 323 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUE
Entitlement to an increased (compensable) evaluation for
residual scars of a shell fragment wound of the right chin
and right upper lip.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. R. Bucci, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1948 to
February 1950, and from December 1950 to December 1953.
This appeal arises from a June 1993 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his service-connected scars of the
right chin and right upper lip are more disabling than are
reflected by the currently assigned evaluation.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims files. Based on its review of the relevant evidence
in this matter, and for the following reasons and bases, it
is the decision of the Board that the preponderance of the
evidence is against an increased evaluation for scars of the
right chin and right upper lip, residuals of a shell fragment
wound.
FINDINGS OF FACT
Scars of the right chin and right upper lip, residuals of a
shell fragment wound, are primarily manifested by well-healed
scar formations which are not repugnant or symptomatic, and
result in no functional impairment.
CONCLUSION OF LAW
The criteria for a compensable evaluation for scars of the
right chin and right upper lip, residuals of a shell fragment
wound, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. §§ 3.321, 4.40, 4.118, Diagnostic Code 7800
(1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that the veteran's claim is well-
grounded within the meaning of 38 U.S.C.A. § 5107(a) (West
1991). That is, he has presented “a plausible claim, one
which is meritorious on its own or capable of
substantiation.” Murphy v. Derwinski, 1 Vet.App. 78,
81(1990). A claim that a service-connected condition has
become more severe is well grounded where the claimant
asserts that a higher rating is justified due to an increase
in severity. See Caffrey v. Brown, 6 Vet.App. 377, 381
(1994); Proscelle v. Derwinski, 2 Vet.App. 629, 631-632
(1992). The Board also is satisfied that all relevant facts
have been properly developed and that no further assistance
to the veteran is required in order to comply with the duty
to assist him mandated by 38 U.S.C.A. § 5107(a) (West 1991).
Disability evaluations are determined by comparing the
veteran’s present symptomatology with the criteria set forth
in the VA’s Schedule for Rating Disabilities. 38 U.S.C.A.
§ 1155 (West 1991); 38 C.F.R. Part 4 (1995). In this
regard, the Board is required to adjudicate claims for
increased ratings in light of the schedular rating criteria
provided by the regulations. See Massey v. Brown, 7 Vet.App.
204, 208 (1994). Where entitlement to compensation has
already been established and an increase in disability rating
is at issue, the present level of disability is of primary
concern. The entire recorded history of a disability is to
be reviewed, but the regulations do not give past medical
reports precedence over current findings. See Francisco v.
Brown, 7 Vet.App. 55, 58 (1994).
The record reveals that in Korea in April 1951, the veteran
was wounded by a burst of mortar shell in the face. A
February 1955 rating decision granted the veteran service
connection for non-disfiguring scars of the right chin and
right upper lip, residuals of a shell fragment wound, and
assigned a noncompensable disability evaluation. He has
maintained this evaluation to date. The veteran now contends
that the residual scars of the right chin and upper lip are
more severe than are reflected by the currently assigned
disability rating.
The veteran currently is evaluated under 38 C.F.R. § 4.71a,
Diagnostic Code 7800 (1995). Under that diagnostic code, a
noncompensable evaluation is warranted for a slightly
disfiguring scar of the head, face, or neck. A 10 percent
evaluation requires that such a scar be moderately
disfiguring. A 30 percent evaluation is appropriate where
scarring is severe, especially if producing a marked and
unsightly deformity of the eyelids, lips, or auricles. A 50
percent evaluation is appropriate where there is complete or
exceptionally repugnant deformity of one side of the face or
marked or repugnant bilateral disfigurement.
The Board finds that the criteria for a compensable rating
under Diagnostic Code 7800 have not been met. The Board
notes the veteran’s November 1992 statement that the doctor
at the Chillicothe VA Medical Center found shrapnel in the
gum area, as well as his sworn testimony that his shrapnel
scars were sore and that he had to remove his denture for a
couple of days in order to relieve the pain, and that
shrapnel in his tissues occasionally worked its way out of
his mouth. In addition, the Board acknowledges that during
the at the December 1993 VA examination, the veteran
complained of difficulty eating, and intermittent pain and
swelling in the gum, teeth, and chin area. However, the
objective evidence of record does not support the veteran’s
allegations. VA treatment reports from Chillicothe dated
from August 1990 through November 1993 fail to show treatment
for the chin and lip scars. Indeed, these same treatment
reports fail to mention any removal or retained shrapnel in
the veteran’s wounds of his face and mouth. Although VA
outpatient treatment reports indicate that the veteran was
fitted for dentures and that the dentures were adjusted on
several occasions, neither these, nor other reports of record
indicate that any such problems were due to functional
impairment, including interference with mastication,
attributable to the veteran’s service-connected scars;
indeed, the veteran was noted to have hyperkeratosis of the
tongue in March 1993. Rather, the record indicates that the
veteran’s scars are not repugnant or symptomatic, and do not
result in any functional impairment. Significantly, at the
December 1993 VA examination, the examiner noted a 5 mm
linear scar on the right upper lip, a 4 mm depressed scar on
the right chin, and a one and one half cm linear well healed
scar at the right lower labial mucosa. The examiner noted
that there was no inflammatory disease or associated skin
pathology in these area. In addition, the examiner noted
that only well-healed scar formation could be evidenced on
the examination. Moreover, in his April 1994 decision, the
Hearing Officer included his observation that the veteran’s
scars were not perceptible from a distance of four to five
feet.
In view of the foregoing, the Board finds no basis for
assignment of a compensable evaluation for scars of the right
chin and right upper lip, residuals of a shell fragment
wound, under Diagnostic Code 7800. Moreover, in the absence
of evidence of poorly nourished scars with repeated
ulceration (Diagnostic Code 7803), or superficial scars that
are tender and painful on objective demonstration (Diagnostic
Code 7804), the criteria for an increased evaluation under
other potentially applicable diagnostic codes likewise are
not met. The appeal, thus, must be denied.
In reaching this decision, the condition of the scars have
been reviewed. Inasmuch as there is no objective evidence of
pain or other problems, there is no functional impairment
which can be attributed to such symptoms. See 38 C.F.R.
§§ 4.40, 4.45 (1995); DeLuca v. Brown, 8 Vet.App. 202, 206-7
(1995).
The Board’s decision in this case is based upon its
consideration of relevant provisions of the VA’s Schedule for
Rating Disabilities. The Board would point out that in Floyd
v. Brown, 9 Vet.App. 88, 96 (1996), the Court held that the
Board does not have jurisdiction to award an extra-schedular
evaluation pursuant to the provisions of 38 C.F.R.
§ 3.321(b)(1) (1995) in the first instance. In this case,
however, there has been no assertion or showing that the
disabilities under consideration have caused marked
interference with employment or necessitated frequent periods
of hospitalization. In the absence of such factors, the
Board is not required to remand this matter to the RO for the
procedural actions outlined in 38 C.F.R. § 3.321(b)(1). See
Bagwell v. Brown, 9 Vet.App. 157, 158-9 (1996); Shipwash v.
Brown, 8 Vet.App. 218, 227 (1995).
ORDER
A compensable evaluation for scars of the right chin and
right upper lip, residuals of a shell fragment wound, is
denied.
JACQUELINE E. MONROE
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -